British politics is all a-tizzy over the release of the secret legal opinion that Prime Minister Tony Blair sought before the Iraq invasion. It turns out the attorney general, Lord Goldsmith, warned the PM that the war might not be legal — an opinion that clashed with what the Blair government reported to the public.
That might sound familiar, but this part won’t, given the collective shrugging of American shoulders last November: The revelations about the legal finding could affect Blair’s chances at reelection on May 5.
The difference in language between what Goldsmith fed the public and what he told Blair is glaring. While his public verdict was “Authority to use force against Iraq exists from the combined effect of Resolutions 678, 687 and 1441,” his private advice found that “the language of resolution 1441 leaves the position unclear.”
Yeah, but come on, you’re thinking, “This is war, not contract law. Did Winston Churchill seek advice from his barrister before going to war with the Jerries? Silly Brits. Thank goodness for the good ol’ US of A, where going to war is about guts and gumption, not legal parsing.”
Well, in fact, the U.S. did prepare a legal case for the war in Iraq — it just hasn’t been something the American electorate obsessed over.
But as long as his chief ally Tony is taking heat, perhaps Dubya’s legal thinking deserves renewed attention.
Like the Brits, the U.S. case for war refers to the intent and wording of the relevant Security Council resolutions. But the nut of the U.S. case is the president’s powers under domestic law — and especially the Iraq resolution that Congress approved in late 2002.
In order to activate those powers, the president had to make a declaration to Congress before launching the invasion. In part, it read:
I determine that: reliance by the United States on further diplomatic and other peaceful means alone will neither (A) adequately protect the national security of the United States against the continuing threat posed by Iraq nor (B) likely lead to enforcement of all relevant United Nations Security Council resolutions regarding Iraq.
The prez also said that going to war would be “consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”
Hmmmm. Seeing as how Iraq didn’t pose a threat because it didn’t have WMD or significant ties to al Qaeda, Dubya’s declaration looks suspect. But as the saying goes, hindsight is 20/20.
Yet foresight can be pretty clear too. “I am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to pre-empt danger in the future,” the British attorney general wrote. “If this means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which, in my opinion, exists or is recognized in international law.”
And that’s not all. “They maintain that the fact of whether Iraq is in breach is a matter of objective fact which may therefore be assessed by individual Member States,” said Lord Goldsmith. “I am not aware of any other state which supports this view.”